Decided on April 28,1954

STATE Respondents


- (1.)THIS judgment disposes of the above three appeals against the appellants' conviction by the Sessions Judge, Gohilwad Division, Under Section 498, Penal Code, and sentence of nine months' rigorous imprisonment and a fine of Rs. 200/- each and in default three months' rigorous imprisonment.
(2.)THE appellants were committed by the First Class Magistrate, Bhavnagar, on charges Under Sections 366 and 498, Penal Code, and tried by the Sessions Judge on that commitment and the point of law, upon which the appeals turn, is wheher the absence of a proper complaint from the husband Under Section 199, Criminal P. C, does not vitiate the entire proceedings, including their trial before the Sessions Judge.
(3.)THE proceedings were started by Madhavsinh Jivansinh, who filed a complaint before the Magistrate against the three appellants and Bai Hira Kanji, charging the appellants Under Section 366, Penal Code, and abetment thereof and charging Hira Under Section 494, Penal Code, Hira's husband Jethiji was at this time in Jail in Junagadh undergoing a sentence of imprisonment. Under Section 199, Criminal P. C, the Court could not take cognizance of the offence Under Section 494 Penal Code, except upon a complaint made by some person aggrieved by the offence, or, with leave of the Court, by some other person in his behalf, if such person is unable to make the complaint. Madhavsinh, therefore, applied for leave of the Court to file the complaint stating in the complaint that as Jethibhai was in jail he was not in a position to attend the Court and leave should be granted to him (Madhavsinh) to file the complaint. He had applied for leave by a separate application also. The learned Magistrate refused leave to Madhavsinh on the ground that Jethibhai could make a complaint through Jail authorities and therefore leave could not be granted. He did not formally dismiss the complaint but his order should be taken to be tantamount to an order dismissing the complaint. A revision application against this order was preferred to the Sessions Judge Mr. Unwalla, the predecessor of the present Sessions Judge, who set it aside and remanded the case for further inquiry. On receipt of the papers from Mr. Unwalla, the learned Magistrate referred the complaint to the police for inquiry Under Section 202 (1), Criminal P. C, and after receipt of the police report, he issued bailable warrants against the accused and after holding an inquiry under Chapter 18 of the Criminal P. C, discharged Hira Under Section 209, Criminal P. C, and committed the present appellants to the Sessions Court on charges Under Sections 366 and 498, Penal Code. An objection was raised during the trial on behalf of the appellants that the proceedings were vitiated for want of a proper complaint Under Section 198, Criminal P. C, but this objection was overruled by him. He acquitted the appellants of the offence Under Section 366, Penal Code, but convicted them Under Section 498, Penal Code, and sentenced them as above. The appellants have preferred these appeals against their conviction and sentence.

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